Om Prakash v. State of Kerala and The Sub Inspector of Police, Pettah Police Station, Thiruvananthapuram

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 BAIL APPL. NO. 1 OF 2024 CRIME NO.17/2023 OF PETTA POLICE STATION, THIRUVANANTHAPURAM AGAINST THE ORDER/JUDGMENT CMP 3280/2023 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM ``` ## **`PETITIONER/8TH ACCUSED:`** ``` OM PRAKASH, AGED 44 YEARS S/O. PRASANNA KUMAR @ KUTTAPPAN, O.K. NIVAS, PANAMOOTTUVILAKAM, ST: XAVIER'S CHURCH ROAD,VALIYATHURA, VALLAKADAVU, MUTTATHARA, THIRUVANANTHAPURAM-695009 ``` ``` BY ADVS. P.MOHANDAS (ERNAKULAM) GOKUL D. SUDHAKARAN SABU PULLAN K.SUDHINKUMAR BHARATH MOHAN R.BHASKARA KRISHNAN K.P.SATHEESAN (SR.) ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA-682031 ``` ``` 2THE SUB INSPECTOR OF POLICE, PETTAH POLICE STATION,THIRUVANANTHAPURAM-695024 ``` ## **`OTHER PRESENT:`** ``` SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.1 of 2024** ``` 2 ``` ## **Dated this the 2[nd] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 8[th] accused in Crime No.17/2023 of the Petta Police Station, Thiruvananthapuram, registered against the accused (14 in number) for allegedly committing the offences punishable under Sections 143,147,148, 149, 341, 294(b), 324, 506(ii), 427, 120B and 307 of the Indian Penal Code and Section 27 of the Arms Act. The petitioner was arrested on 3.12.2023. 2. The gist of the prosecution case is that; the accused in furtherance of their common intention to kill one Nithin, who is the employer of the informant, on 8.1.2023 at about 3.30 a.m., formed themselves into an **B.A. No.1 of 2024** ``` 3 ``` unlawful assembly with dangerous weapons like sword, chopper etc. and went in two vehicles and waylaid the car of the victim. Thereafter, the 3[rd] accused , by using a tactical stick, broke the windshield of the car and the 1[st] accused by using a chopper, hacked the victim on his left hand and the second accused by using a sword, hacked the victim on his left hand and legs repeatedly and caused grievous injuries to him. Later, the 4[th] accused, again by using the tactical stick, beat the passengers who were travelling along with the Informant and caused serious injuries to them also. The 3[rd] accused by using a chopper, hacked the de facto complainant on his legs and caused grievous injury to him. The accused 5,10, 11, 12, 13 and 14 also damaged the car. Thus, the accused have committed the above offences. 3. Heard Sri. K.P.Satheesan, learned Senior Counsel appearing for the petitioner and Smt. Seetha S. the learned Senior Public Prosecutor appearing for the **B.A. No.1 of 2024** ``` 4 ``` respondents. 4. The learned Senior Counsel appearing for the petitioner submitted that the petitioner is falsely implicated in the crime. There is no specific overt act alleged against the petitioner in the FIR or other materials. The sole reason to implicate the petitioner as an accused is that the 8[th] accused had sent a photograph to the petitioner’s mobile phone. The petitioner has settled in Chennai and is doing business in Chennai and Goa. The petitioner has been arrested from Goa. The petitioner has been in judicial custody since 3.12.2023. This Court, by order dated 31.3.2023 in B.A. No.2131/2023, has enlarged the accused 1, 2, 4 and 7 on bail. Similarly, the 3[rd] accused was enlarged on bail by the order in B.A. No.1994/2023. Likewise, the accused 10 and 11 were enlarged on bail by the Court of Session, Thiruvananthapuram in Crl.M.C No.458/2023. A reading of the above orders would reveal that there are specific **B.A. No.1 of 2024** ``` 5 ``` overt acts alleged against those accused. This Court as well as the Court of Session, Thiruvananthapuram granted bail to those accused after a period of 60 days. Hence, the petitioner is also entitled to be released on bail, especially since he is in incarceration for the last 62 days. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the petitioner is the mastermind of the crime. The petitioner instigated the other accused to kill the victim. The fact that one of the accused sent the photograph of the victim to the petitioner establishes that he is the man behind the scene. The petitioner is a person with criminal antecedents because there are 18 cases registered against him by the Police Stations at Pettah, Poojapura, Malayinkeezh, Valiyathura, Vanchiyoor, Medical College, Peroorkad, Kazhakoottam, Mulavukadu and Kadavanthra, for committing similar offences. If the petitioner is ``` 6 ``` ## **B.A. No.1 of 2024** enlarged on bail, there is every likelihood of him committing similar offences. Therefore, the application may be dismissed. 6. In response to the bail objection report, the petitioner has produced Annexures III to V, to substantiate that he has been acquitted and the proceedings have been quashed. He has also stated that there is no case registered against him during the period between 20122019, except for one case. The petitioner is ready to abide by any stringent condition that may be imposed by this Court and co-operate with the investigation. Hence, the application may be allowed. 7. The specific allegation of the prosecution is that the petitioner had instigated the other accused in the crime to do away the victim due to his previous animosity. After the victim was injured, 5[th] accused took a photograph of the hand of the 3[rd] accused, which was smeared with the blood of the victim and then the 8[th] **B.A. No.1 of 2024** ``` 7 ``` accused forwarded the photograph to the petitioner with a note’ ‘Nithinte Chora Ibruvinte Kayyil’. The very sending of the photograph by the 8[th] accused shows that the petitioner is the person who instigated the accused to commit the crime. 8. On anxious consideration to the materials placed on record, it is seen that accused 1 to 5, 10 and 11 have already been enlarged on bail, after being in judicial custody for 60 days. The investigation as against those accused is complete. In the case on hand, the petitioner has been in judicial custody since 3.12.2023. Indisputably, the investigation, so far it relates to the petitioner is concerned is practically complete and recovery is effected. Going by the additional documents that have been produced along with Crl.M.A. No.2/2024, it can be gathered that the petitioner has been acquitted or the proceedings have been quashed. Therefore, I am of the definite view that the petitioner’s continued detention ``` 8 ``` ## **B.A. No.1 of 2024** is unnecessary and unwarranted. Thus, I am inclined to enlarge the petitioner on bail, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer on every Tuesday and Saturday between 9 a.m. and 11 a.m for a period of one month and thereafter on every Saturday between 9 a.m. and 11 a.m till the final report is laid, whichever is earlier. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make ``` 9 ``` ## **B.A. No.1 of 2024** any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) The petitioner shall furnish his present address and permanent address, and his mobile phone number to the court below and the Investigating Officer; **B.A. No.1 of 2024** ``` 10 ``` (vi) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Thiruvananthapuram for a period of two months. (vii)In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (viii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme ``` 11 ``` ## **B.A. No.1 of 2024** Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** ``` SD/- ``` **C.S.DIAS, JUDGE** rmm/2/2/2024 ``` 12 ``` ## **B.A. No.1 of 2024** ## **`APPENDIX OF BAIL APPL. 1/2024`** ``` PETITIONER ANNEXURES ``` ``` Annexure -ITRUE COPY OF THE F.I.R. IN CRIME NO. 0017/2023 DATED 8-1-2023 OF PETTAH POLICE STATION, THIRUVANANTHAPURAM ``` ``` Annexure -IITRUE COPY OF THE ORDER DATED 20-12-2023 IN C.M.P.NO. 3280/2023 IN CRIME NO. 0017/2023 OF PETTAH POLICE STATION PASSED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT, THIRUVANANTHAPURAM ``` ``` Annexure -IIITRUE COPY OF THE JUDGMENT DATED 10-12-2014 IN C.C.NO. 106/2013 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM ``` ``` Annexure -IVTRUE COPY OF THE ORDER DATED 8-11-2023 IN CRL.M.C.NO. 2676/2021 ``` ``` Annexure -V ``` ``` TRUE COPY OF THE ORDER DATED 24-06-2013 IN CRL.M.C. NO. 2552/2013 ```